Wills, Divorce and Separation

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With the festive season over, it seems that the New Year is bringing with it a new season (well, for lawyers at least) – ‘divorce season’.

Lawyers have started referring to January as the start of the divorce season, with appointments soaring at the beginning of January and continuing to build for the first few months of the year.

But what is the effect of separation and divorce on wills? If you are separated or divorced and your spouse is named in your will, is this still valid? When do you need to change your will?

In this week’s 'The Counsel You Keep' - John Gallagher from Argon Law explains the legal consequences of divorce and separation in respect to a will in Queensland.

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With so many marriages proceeding to separation or divorce, it is important to understand what effect this has on any wills made by parties to those marriages.

It’s very common for married couples to gladly leave the bulk of their assets to their spouses under their wills, however, if the marriage relationship breaks down, the parties’ intentions can change.

The law recognises this to some degree by providing that, unless the will says otherwise, when people divorce, any provision made in their former spouse’s favour will be revoked.

With some limited exceptions, the rest of the will still operates, but it takes effect as if the former spouse has died before the will maker dies.

Unlike divorce, if a couple is separated but still legally married and if one of them dies before any divorce is effected, then gifts in their will to their spouse will still be valid. Similarly, if your spouse is named as executorthey will be entitled to take up that role even if it’s not what you intended.

It is essential that you review and update your will during the period of separation prior to divorce.

You should review your will to ensure that the assets you have worked so hard to accumulate are left to those you want to benefit.

If you are separated but not divorced, do you still want your spouse to benefit under your will?

If you are divorced, given that gifts to your former spouse are now revoked, should you update your will so that it reflects your current intentions?

Argon Law is a Sunshine Coast law firm based in Maroochydore. We are commercial lawyers with many years of experience in drafting wills and advising on asset protection and are eager to assist you in any way we can.